March 20, 2007

It never gets old, does it? It's funny, and it will always be funny. "Bong Hits 4 Jesus." People will be laughing about that line in Conlaw classes years and years from now. I hope the Supreme Court writes an interesting opinion, so it can be a main case in the case book, to lighten the load of studying free speech forever. Oh, you think I'm not taking drugs seriously enough... taking drugs seriously... taking drugs ... heh heh heh... what are you, the principal or something? The Principal of the Blogosphere? Eric Alterman already has that job, so settle down. It's time to talk about "Bong Hits 4 Jesus." Heh heh... It never gets old, does it?

Well, I had a nice, detailed post on on the "Bong hits 4 Jesus" case -- boringly aka Morse v. Frederick -- but my computer ate it last night. It got the munchies. I had all the lines from the Justices that cracked me up, like when Justice Ginsburg tried to make a hypothetical out of the notion -- who knows why it popped into her head? -- what if instead of "Bong hits 4 Jesus," the banner had said "Bong stinks for Jesus." Now, I assure you I'm not high. For one thing, it's 6 a.m. For another, I haven't been anywhere near marijuana since I sat next to those guys at a Kinks concert in 1973. Also, it's illegal. And unlike some people, for me, the fact that something is illegal is enough to keep me from doing it.

Now, take down that banner! Don't you see the Olympic torch is coming through town? It's a torch to ignite all the hopes and aspirations and lofty, sporty thoughts of mankind. Not a cue to light up illicit botanicals.

Since I lost the heart to reconstruct my hilarious post from scratch, let me link to Dahlia Litwick's write-up and offer a little commentary:

... [Joseph] Frederick wanted to annoy school administrators, and he wanted media attention, and as we discovered today, he chose well on both fronts. He was suspended for 10 days. And we are out in droves to cover his case....

I love that Ken Starr is the one embodying the principal's censoriousness. Like a perfectly phrased 15-foot banner, he's the perfectly chosen purveyor of high school moral standards.

Starr's alternative...: Schools get limitless discretion to craft broad "educational missions" and are then free to squelch any student speech that "undermines" them.

I love the way that formulation is so well-framed as a general principle yet so utterly disturbing. To be fair, Starr doesn't argue for "limitless discretion." He argues for deference to the reasonable decision of the school official.

Souter ... insists that the "bong hits" statement itself should be scrutinized for its meaning. The way Cheech and Chong might strive to seek meaning in a Hansen song. But Kneedler responds that the only person who can determine the banner's meaning is the educator who banned it. "But won't the principal always prevail?" asks Justice John Paul Stevens. Um, yes. That seems to be the point.

Souter had a really good point, actually. Kneedler was making a distinction between speech that supports illegal drug use and speech that advocates legalizing marijuana. Souter posited that "Bong hits 4 Jesus" could be construed as an argument for legalization, through the literary device of ridicule.

By the time Douglas Mertz gets up to argue on the students' side, it looks like he's already won, if for no other reason than the justices appear horrified by the limitless [sic] power the schools are asserting. But somehow he manages to trigger a second, more terrifying episode of paranoia in them. "This is a case about free speech, not drugs," he opens, but Roberts clocks him with: "This is a case about money. Your client wants money from the principal for her actions." Then Kennedy jumps in to ask what kind of kid would go after "a teacher who has devoted her life to this school, and you're seeking damages from her for a sophomoric sign."

I was surprised to see Kennedy blatantly show sympathy for one party over the other like that. And Roberts's point seemed strange. Cases about things that happened in the past are nearly always, in some way, "about money." Why bring it up here? Because it's horrible that a poor educator should ever have to pay?

Later, however, Roberts nails it. The case is about whether there was clear law that the principal should have known, which is required before damages are available against a government official who has what is called "qualified immunity":

Can we get back to what the case is about? You think the law was so clearly established when this happened that the principal, that the instant that the banner was unfurled, snowballs are flying around, the torch is coming, should have said oh, I remember under Tinker I can only take the sign down if it's disruptive. But then under Frazier I can do something if it interferes with the basic mission, and under Kuhlmeier I've got this other thing. So she should have known at that point that she could not take the banner down, and it was so clear that she should have to pay out of her own pocket because of it?...And so it should be perfectly clear to her exactly what she could and couldn't do.

MR. MERTZ: Yes.

The opportunity for humor is ripe and Scalia snags it:

As it is to us, right?

Souter explains the joke:

I mean, we have had a debate here for going on 50 minutes about what Tinker means, about the proper characterization of the behavior, the nonspeech behavior.

One of the finest points in this case is what it means for a message to be "disruptive" (a key concept in Tinker). This case is about something that happened on the street and not in a classroom. The banner was, of course, silent, and the occasion was a parade. It's quite different from disruptive speech during a lesson. Scalia offered a distinction between "disruptive" and "undermining." The school's real objection is that a pro-drug message undermines the message it endorses. That is, they don't want disagreement and debate. They still convey their anti-drug message all the time, and this student isn't interrupting them or even distracting anyone from hearing that message. He's just delivering a counter-message on another occasion, and they object to the argument. That should be held to violate the First Amendment.

But the Court can also say that this wasn't yet clear, which would save the principal from having to pay damages. It would, however, set the stage for the next suit for damages, as the Court can use this case to make the law clear. And it should.

Given the "disruptiveness" element the court is focusing on, does that mean if the student unfurled a 14 foot banner with those mohammed cartoons and some nearby muslims start rioting that that sign would be verbotten? And if he unfurled a banner with images offensive to Christians, who just sort of stand there and take it, that's acceptable?

Does this doctrine not validate the muslim response around the world to the cartoon "controversy" a few months ago?

I question why this case even started. A reasonable administrator would have seen the sign for the attention-getting device it was, and ignored it. It posed no immediate threat to the safety of any one in the school. It wasn't disruptive (school wasn't even in session).

For once, Justice Kennedy went straight to what bothered me about this: Pillock though he may be, as I understand it, this kid wasn't on school property, let alone in the classroom. And I had thought that Tinker dealt with conduct in the classroom, which I suppose might be generalized to conduct within the school.

And right out of the gate, on page 4, Justice Kennedy points out that while under Tinker there's a right to political speech subject to requirements that the speech not be disruptive, what I can't fathom (and apparently Kennedy's right there with me) is "Disruptive of what? Disruptive of the classroom order? There was no classroom here."

I favor this:The kid gets detention for being a juvenile dolt, and gets to tell a great "I told truth to power" story at work in Starbucks ten years from now.

Simon, I disagree to this extent: if you are attending something as a school, your behavior reflects on the school. The principal is trying to protect the school's image, and the kid is making them out to look like idiots. This occurred only because the whole school went to watch. The lad wasn't there on his own time, but on company time. If I did the same thing at work (i.e. let out to cheer some parade and I hold up some jackass sign), I would have been fired, and the Supreme Court never would have seen this case.

The principal is trying to protect the school's image, and the kid is making them out to look like idiots.

I just don't see that. I wonder if there was even one person in Juneau who saw that sign and attributed it not to juvenile excess but to the idiots running the school. It's the principal's reaction that is making them look like idiots.

Re: "I wonder if there was even one person in Juneau who saw that sign and attributed it not to juvenile excess but to the idiots running the school."

The rest of the students knew it. The teachers knew it. The school children's parents knew it. If you cannot control a teenage boy when the school is out somewhere as a class, then say goodbye to any discipline at all, which is basically what has occurred to the US.

My wife and I volunteer at the local theater frequently. You can always tell the difference bewteen the private and public school kids by the latter's lack of discipline and lack of attempts at discipline.

And it explains why people have resorted to being nasty everywhere you go. Why be nice and disciplined, when rude, obnoxious, and disruptive has such a big payoff?

It's probably deeply offensive to, oh maybe, 20 or 30 million Americans, irritating to another 50 million, and mildly irksome, as it is to me, to about another, umm, 50 million people.

If someone pulled out such a banner during a parade in a stone-age dwarftown like Little Rock, Birmingham, Lynchburg, or even Indianapolis or maybe even Colorado Springs, a fight could start, (unlikely, but ya never know) and that's why the principal was right to take down the banner—Them's words above is fightin' words to some folks...

There is a grayer area than the lawyers doing the SCOTUS briefs admit to, even for that matter the justices. Even.....Ann!

That is that there is a gray area where things said and expressed outside school can get into the mechanisms of the school teacher-student, student-student interactions and disrupt the good order and discipline (already near non-existent in some cities thanks to court meddling.) There is no magic wall, where any communication done outside the school magically stops at school boundaries. What is on You Tube about who's a slut, a list of those hated, someone text messaging vague threats, expressing their personal opinion of what blacks should do to Latinos....all have potential to enter the school space. Even drug abuse, which we know cripples the future of so many kids and states, localities and the Fed Gov't - through the people have funded anti-drug messages. Messages and classes that educators and parents believe are deemed critical to school performance - and undermined by students outside school hours/grounds sabotaging that school objective by belittling the instruction. The kid is not a voter. He is a ward of some guardian, and as a student has responsibilities as well as rights.

I'm not sure that a law can clarify what student speech on posters or You Tube etc. legitimately impedes and disrupts the school mission that is agreed to by the community, and what does not. It is situational and judgemental.

If a student has a poster that says rival Grantown High stinks, it is different than - with racial tension and fights - saying on a text message to 100 people outside school hours that blacks stink. Yet the speech is what the student comes down to believing "stinks" and says on his own dime outside school hours - until of course a race riot happens at school the next day because of "outside school" protected?? free speech.

Students, like military and prisoners, do not have full rights. When courts have meddled to "expand lid's rights" outside what educators, legislators, parents, and local boards should decide - the result has tended to undermine order, discipline, and cause falling student body performance. In the prisons, similar court meddling has had even more catastrophic consequences.

If they err, they should err on the side of safety and caution in allowing schools, board of ed, and parents latitude in blocking destructive student behavior and communications inside and outside school.

Though "Bong Hits For Jesus" is a great tweak for a brat with a "performance theater" orientation that wanted attention and to ridicule his schools anti-drug efforts to do.

Pogo - I guess I can buy into the argument that when the classroom leaves the classroom - on a school trip, for example - Tinker goes with it. But is that what happened here? "Students in the Juneau public schools were permitted to attend the event during school hours. Most students at Juneau-Douglas High School gathered outside the school building, which was on the torch route." Brief for pet., 2. Frederick played truant and showed up in the same vicinity. Is this "permission to attend" the torch event a "classroom leaves the classroom" situation, and if it is, did Frederick count as a participant if he wasn't attending school that day?

nick danger said..."I thought Macs 'just work?!'"

Yeah, that's what I thought, too. Bah! If I ever see that Apple guy from the commercials on the street, I'm going to knock his teeth in, hipster jackass that he is. ;)

Simon wrote: "this kid wasn't on school property, let alone in the classroom."

Details can so help clarify things.

Also, it is important to me to remember that this happened in Alaska, a state where posession of 1/4 pound of marijuana for personal consuption and a grow room to provide in in those short northern growing seasons was once legally permitted.

Set and setting are important to consider in this type of thing you know.

I predict that this will probably be the last SCOTUS case on this general issue involving physical media (for a while). As such, it is legal tee-ball compared to the electronic speech issues coming down the pipe.

Witness not only myspace, AIM, facebook, but also jdjive/autoadmit. I won't prejudge those specific questions, but the fringes (and beyond) of protected speech are well-travelled in all of those forums, and the question whether it's in school or out, or somewhere in between, is wide open.

Note the importance of physical context as to whether "BH4J" was parodic, political, incitement to crime, or all of the above. BH4J was almost literally a sideshow given that context. Electronic speech constitutes the bulk of speech among students, at least the kind of expressive speech that will test 1st A. issues. And the context is far more ephemeral.

Is the chief taking bong hits for Jesus? Everything is about money. Almost every case before SCOTUS is about money. To bring that up in this case only serves, I think, to give Roberts an out: He can clarify the law, rebuke the kid, and the principal won't pay a dime. Can someone only receive damages if their rights haven't been violated by a school teacher. And who cares if she's poor, or doesn't make much money, or however you want to dance around the fact that teachers don't make crap? Who cares? That's not the point. The point is that someone's rights were violated. The point is that this is an actionable offense in this country. The point is that the kid should receive damages. If this was a poor, black single mother whose "Free Bobby Brown" sign was taken from her by Donald Rumsfeld during the middle of the President's inaugural parade, he would pay, and rightly so. The content of the message isn't the point. The speaker isn't the point. The perpetrator isn't the point. Equal justice under the law, right? Justice is blind, right?

Trey,Well, the deputy SG argued -- and I guess this is what Pogo's getting at -- that "[t]his was essentially an outdoor assembly, where the ... students were assembled to watch a particular different, just as in an indoor assembly," Tr. Oral Arg., 27, that students "were required to be there if the classroom teacher decided to let them go out there, ... [and that] they were under school supervision at that time," id. at 28. If you buy that theory, then we're into Fraser-land.

StephenB said..."Almost every case before SCOTUS is about money. ... That's not the point. The point is that someone's rights were violated."

Is that "the" point? That's what respondents contend, but I thought that "the" point here - aside from the ancillary qualified immunity question - is whether someone's rights were violated. That isn't an undisputed point, or we wouldn't be here.

Pogo: Discipline problems at a school are at least in part the fault of parents, not teachers. My observations tell me that many of the discipline problems in my kids' (public) school are from kids with parents that for one reason or another aren't there. At the school attached to the church we occasionally attend, the average parent is much more involved in their child's life. That is the crux of the difference you observe, IMO. Rather than seeing Public vs. Private differences, you are seeing Big Parental Involvement vs. Little Parental Involvement differences.

For another, I haven't been anywhere near marijuana since I sat next to those guys at a Kinks concert in 1973. Also, it's illegal. And unlike some people, for me, the fact that something is illegal is enough to keep me from doing it.

Really? You never drive 60 in a 55 mph zone? Something that's a lot more likely to harm someone than smoking weed?

Pogo,Thinking about it some more, here's another hypothetical to ilustrate the difficulty I'm having with this (which is that, even if I buy the DSG's argument that the students were having an outdoor assembly, Frederick wasn't on school grounds and wasn't attending school, even though he happened to be in physical proximity to the school):

Suppose the Hugo L. Black High School suspends Rupert for a week. And during the week of his suspension, Rupert's class goes on a trip to the zoo. Presumably under "classroom leaves the classroom" premise discussed above, Tinker follows them to the zoo: if a student on the trip engages in non-disruptive political symbolism, you know, wearing a hammer and sickle pin or something, presumably the school can't punish him for that. Now, suppose Rupert shows up independently, wearing the same pin - but he's suspended, so he isn't part of the school group, so the school isn't acting in loco parentis at the time of the activity, even though Rupert is a student at the school and in physical proximity to the school group that is. Can the school punish him for his conduct?

I'm sympathetic to Scalia's suggestion that at a minimum, "Why can't we decide this case on that narrow enough ground, that any school whether it has expressed the policy or not, can suppress speech that advocates violation of the law?" Tr. Oral Arg., 12. I just need a little persuasion. ;)

One of the finest points in this case is what it means for a message to be "disruptive" (a key concept in Tinker). This case is about something that happened on the street and not in a classroom. The banner was, of course, silent, and the occasion was a parade. It's quite different from disruptive speech during a lesson. Scalia offered a distinction between "disruptive" and "undermining." The school's real objection is that a pro-drug message undermines the message it endorses. That is, they don't want disagreement and debate. They still convey their anti-drug message all the time, and this student isn't interrupting them or even distracting anyone from hearing that message. He's just delivering a counter-message on another occasion, and they object to the argument. That should be held to violate the First Amendment.

Substitute "diversity" for "anti-drug" message and you get the same result.

I will note that the brat in question is now a teacher himself, in China.

What does that have to do with anything? He also was arrested in Texas for possession of mj with the intent to sell (I believe he pleaded no contest). Neither subsequent activity, teaching or drug dealing, has any import on the constitutional question related to his actions while in high school.

As to the constitutional question, I believe schools should have wide latitude in what speech they will or will not permit during school or school sponsored activities. In this case, it appears questionable whether the young man was or was not participating in a school event. However, since one of his admitted motives in displaying the banner was to tweak school officials, I'm going to take that as fairly strong evidence that he thought this was an activity that was related to school. That does not mean the school had the right to regulate his speech, it just means it's not clear the principal should have known she would be violating his 1st amendment rights in taking down his banner.

As to whether or not this particular banner in this particular instance should be protected by the 1st amendment, I feel strongly both ways. Part of the purpose of schools is to school children on how to get along in polite society. As a parent, I want the school to assist me in inculcating proper manners in my children. Drawing attention to oneself at an event is often rude. My daughter is currently in NYC attending a model UN conference. If she were to hold up a similar banner during the closing ceremonies (which she is NOT required to attend as part of the conference), I'd hope her teacher would sternly reprimand her. It's not the kind of behavior that will serve her well as an adult.

On the other hand, I don't want schools regulating what opinions can or cannot be expressed by students. On balance, this is a greater worry than a school's inability to assist parents in teaching kids decorum. If we could trust schools to be "content neutral" in their regulation of student speech, that would be alright. I don't think we live in that world. Instead, we live in a world where an instructor will march her class across campus to pull down what she considers to be inappropriate speech -- based on its content. (I realize that example is from a university, but I'm not aware of anything that makes high school teachers less prone to such actions.) So, on balance, I think this speech should be protected. I have difficulty, however, reconciling this position with the mandate the courts have given schools for preventing students from mentioning God in their commencement remarks. Perhaps, the principal could have avoided problems by simply saying the banner was taken down to avoid any school endorsement of religion.

If you cannot control a teenage boy when the school is out somewhere as a class, then say goodbye to any discipline at all, which is basically what has occurred to the US.

Perhaps I misunderstood, but I thought the case was that this student was not in the class and was not part of a school function?

While I agree that discipline in the schools has basically gone to hell in a hand-basket, what gives the school the right to discipline students when they are not in class or on school property?

Can the school determine that certain foods are bad and come into your home and make you throw out all the Crisco and Ho Ho's? If the school has objected to the reading of Tom Sawyer or The Color Purple in class because it offends the delicate sensibilities of some, should they be allowed to punish a student who blatantly "undermines the school message" by reading these books on a public park bench?

Where does the school (and the rest of government for that matter) cross the line from delivering a "message" in context of teaching in a classroom to totalitarian indoctrination?

If I understand Ann correctly, then it's possible for the court to decide the banner was a permissible act of speech, but the principal doesn't have to pay for her action, as she couldn't be expected to sift through all the legal options in the context of that moment. If that's right, then I'm hoping for that outcome.

I'd like the result to be that principals, or other school authorities, have this in the forefront of their minds when faced with a quick speech decision, and use it to push them to err on the side of free speech.

But I hate seeing school administrations constantly on edge about being sued. So excluding damages here would help in that regard. After all, there's always some consumer, I'm sorry, I mean student, complaining about Socrates not curving the grade and unfairly adhering to attendance policies.

Don't mistake my position in this: I'd love to find a way to tell this spotty little oik to get lost, but there are some serious issues here. Was he within the authority of the school? Can the school punish him for conduct outside the school, and if so in what circumstances? Is there a distinction between (to adopt Scalia's premise) disruptive speech and speech which merely undermines the preferred message of the school?

Moreover, you must keep in mind that this case is not just about this case. "Constitutional cases serve two broad goals: they provide relief to those deprived of their rights, and they announce rules of law. They speak to the parties to the case and they speak to the rest of society. Cases are disputes that the courts must address, but they are also occasions for saying what the law is." Althouse, Saying What Righs Are, In and Out of Context, 1991 Wis. L. Rev. 929, 939. Your view on this, I suspect, is being driven because you don't like this litigant and you don't like his message, but this case has ramifications for other students who might want to convey other messages. Suppose a california school decides, in its infinite wacko-ness, that it is going to adopt a particularly rigid interpretation of the establishment clause, and declares that wearing clothes with a religious message is unacceptable. Suppose a student is suspended for wearing a T-shirt advising that "Jesus Saves" while standing outside the school gate, on the grounds that it undermines the school's message. Is that okay?

If the court can find a way not only for the principal to not pay damages, but in fact to win -- perhaps, as Justice Alito suggested, create a sui generis category for drugs, or as Justice Scalia suggested, an exception for advocacy of illegal conduct (that is, characterizing Frederick's conduct as exhorting an action, specifically smoking marijuana, rather than political speech urging a change in the law) -- that's just fine by me. Recall that Justice Black -- one of the three polestars in my legal sky, and reknowned free speech absolutist -- dissented in Tinker. But you can't pretend that this is just an incredibly simple, easy, obvious case that doesn't raise difficult questions.

While I agree that discipline in the schools has basically gone to hell in a hand-basket, what gives the school the right to discipline students when they are not in class or on school property?

That's an interesting question, but it is common for students to be disciplined for things that are unrelated to school. For example, students are frequently disciplined for under-age drinking, even though the drinking takes place on a weekend at a party that has nothing to do with school. IIRC, in Fort Worth several years ago, a group of kids were suspended for attending a party where alcohol was served -- even though some of the students claimed not to have imbibed. School officials felt mere attendance at such a party -- not at school nor affiliated with any school club or organization -- deserved punishment. Where do schools get the authority to do such things? I don't know.

I don't think a school is doing a good job of raising U.S. citizens if it's more focused on keeping them from undermining the position of the administration than on learning to debate and form their own opinions. What's the point of raising a bunch of little sycophants? I further see no connection between maintaining the kind of discipline necessary for a school to be orderly and safe, and restricting speech that disagrees with the ordained positions on various topics. Keep kids from beating each other up in the hallway or smoking dope in the bathroom, sure, but encourage debate and civil disagreement.

And Bong Hits for Jesus is just plain funny. It scans like "Dropkick me, Jesus," which is a lovely song.

Elizabeth - the counterargument to that is that "public school students [are not] sent to the schools at public expense to broadcast political or any other views to educate and inform the public. The original idea of schools, which I do not believe is yet abandoned as worthless or out of date, was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. It may be that the Nation has outworn the old-fashioned slogan that 'children are to be seen not heard,' but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach." Tinker, 393 U.S. at 522 (Black, J., dissenting).

The banner was not disruptive, merely embarrassing and non-conformist. The kid was on a public street. The principle was being a control freak, so I'm with the kid on this one.

I'm surprised AA said that illegality was a constraint for her. Americans are over-regulated and smothered by an excess of contradictory, useless laws implemented by all manner of pompous bureaucrats. I used to worry about obeying the law. Not anymore.

Simon, so, this counterargument, would that be the losing argument in Tinker? I disagree with Black here. When students leave school, they ought to have developed the skills to argue and to assess arguments. I don't see anything threatening in that, and I say that as one who teaches people only one year past high school, many of them 17 by the time they're in my freshman classes. I've never encountered a disruption of classroom discipline through the exercise of debate and speech.

Just as an aside, I can't help but think some of the people here who think this kid is a disruptive little snot would be defending his precious speech if he'd unfurled a banner saying he'd like to bang the chick with big tits in sixth period math class. That's just a hunch; maybe I'm wrong, but I'll never auto-admit it.

Elizabeth said..."If I understand Ann correctly, then it's possible for the court to decide the banner was a permissible act of speech, but the principal doesn't have to pay for her action, as she couldn't be expected to sift through all the legal options in the context of that moment. If that's right, then I'm hoping for that outcome. I'd like the result to be that principals, or other school authorities, have this in the forefront of their minds when faced with a quick speech decision, and use it to push them to err on the side of free speech."

Elizabeth, it's possible in this case to say that because the law wasn't clear, the principal has qualified immunity, which means she could reasonably have thought that what she did did not violate rights. That reasonability, however, is based on a finding of the unclarity of the law as it was when she had to make her decision. Once the case is decided, the Court will have articulated the law, and that means in the next case, the principal will not be able to make the same claim of immunity and will have to pay. If that were not so, rights would not have remedies, and it is a very basic proposition of American law -- you can quote Marbury v. Madison for it -- that where there are rights, there are remedies.

Okay, I think I have it. This principal might reasonably be seen as operating under circumstances where she'd made the wrong decision, but wasn't informed enough to determine that at the time. But after this, principals will have this decision to guide them, and it ought to be clarifying.

I'd like to see some kid unfurl a "where there are rights, there are remedies" banner sometime. That would be fun.

Really? Like with signed waivers and chaperones? I would guess school policy requires such things, by definition, for field trips - as opposed to cancelling classes for the morning and saying, "be back for fouth period".

"Once th[is] case is decided, the Court will have articulated the law, and that means in the next case, the principal will not be able to make the same claim of immunity and will have to pay. If that were not so, rights would not have remedies."

Why's that? Surely the ability to sue the school board for its policy, rather than the principle personally as the instrument and executor of that policy, see brief for pet. 2-3, would also constitute a remedy.

The case is about whether there was clear law that the principal should have known, which is required before damages are available against a government official who has what is called "qualified immunity"

That is the test, but this case only goes to show how absurd that test is. It is becoming ever more clear that government officials will always be able to claim such qualified immunity because the judges have made such a mess of the law that, these days, it almost is never clear. Especially at the Supreme Court, where the Constitution is "living," like the ever-changing commandments on the barn of Animal Farm, the "law" has a tendency to change from term to term, and sometimes even within terms.

JUSTICE BREYER: But I mean, that's -- I have, I guess his note, you accept this with what the teacher said. The entire class went to view the relay. Individual students -- this is at 9:30 in the morning. They were not given the option of remaining in class, nor were they released to do as they pleased. They were to watch the relay with the rest of the student body, either just in front of the school or just across the street -- that's me, not them -- and then return directly to their classrooms, which I guess the school did. So it sounds like you're going to one place, stand together, behave yourselves, watch the relay, and the teachers will be there and take you back to class. Now is there something else in the record that suggests something different?

MR. MERTZ: There is a major dispute on that point, Your Honor. We presented several affidavits that showed individual teachers -

They never returned to this topic because it was as Scalia noted, at the direction of the school.

No, I have no feeling about the litigant nor what his sign said. I don't think minors have unlimited free speech rights. The interest of the school to enforce proper decorum outweighs the political interests of the student. I do not have an issue if schools were to restrict religious slogans or any slogan on clothing.

Fritz - no, his class was (arguably) on a field trip, or at an outdoor assembly, you know, however you want to characterize it. Under school authority even if not in the classroom, and for sake of argument, I'm happy to accept that Tinker follows the classroom when the classroom leaves the classroom, as discussed above.

So suppose we buy that his classmates were "at school" for present purposes, which would mean that if Frederick showed up that day, this would presumably be akin to Fraser. But he was playing truant. He didn't show up to school that morning, which means he wasn't registered as being in attendance, which means (inter alia) that the school didn't assume in loco parentis authority over him. At a minimum, there's a reasonable argument -- and I realize that Scalia doesn't buy this argument, so I'm on thin ice here -- that he wasn't under school authority and wasn't on school grounds, even if he was in close proximity to those who were. Which makes it more like my modification of Scalia's zoo hypothetical, suggested above.

Supose this were an in school assembly. If Frederick were truant, and showed up at the assembly with the same sign, would you still have the same position?

The asssembly was in progress, as was the school day when our truant showed up and disrupted it. It was not, in my opinion, either the sign or its message, but his refusal to remove the banner when asked.

Based on that there is not a free speech issue, either drug or religious related, but a disipline issue.

Unfortunately, Justice Kennedy's behavior does not surprise me in the slightest. I don't know what it is with him, but he is clearly biased when it comes to issues involving schools and drugs.

Here, he asked what kind of kid would go after a devoted teacher, blah, blah, blah, blah, blah. (To which my answer would be the kind of kid who understands the importance of constitutional rights, but that's besides the point...)

In Board of Education of Independent School Dist. 92 of Pottawatomie Cty v. Earls, Justice Kennedy, in speaking with ACLU attorney Graham Boyd, referred to plaintiff Lindsey Earls as Boyd's "druggie client." Lindsey Earls is a college friend of mine. She is one of the most straight-laced, goodie-two-shoes I've met. She didn't do drugs in middle school or high school. She didn't do drugs in college. To the best of my knowledge, she doesn't do drugs now. Kennedy's language was not only unbecoming a judge, it was slanderous. Had a lower court judge said such a thing, he would have been admonished, if not removed.

If I were an attorney arguing a case involving school and drugs in some form, I would certainly request that Kennedy recuse himself. (Unless I was on the side of the school, that is.)

fritz, you don't say how old your kids are, but if my teen and tween were mandated by their school to behave just so all the time, I'd move them to another school. It's my job as a parent to see that they behave. It's not the school's. I think it very likely that a school and I will have different standards of expected behavior.

Simon,That is playing semantics. The Republic is in no danger because some teenager is prevented from being obnoxious, I would argue that the Republic is better served by preventing him from enjoying his rude behavior.

Am I the only one who thinks "Bong Hits 4 Jesus" is the Great Lost Kinky Friedman Song? (I looked it up, there isn't anything by that title . . . at least not yet anyway.)

Below are some actual song titles, and it saddens me that the Supreme Court will probably never get to hear cases based on them:

"Hit The Bong Long" (Jet Baker)

"Bong Hits And Porn" (The Ominous Seapods)

"Bong Hits At The Great Pyramid" (Savage Aural Hotbed)

And for our Spanish-speaking friends:

"Hijos De La Bonga" (Resorte -- a Mexican funk-metal combo)

(I have a fantasy that mischievous slacker-dudes back in the Gay '90s hijacked the family Spinet and corrupted the million-selling sheet music hit with the lyrics: "After the bong is over/After the break of morn/After the dancers' leaving/It's just right for bong hits and porn . . .")

The answer is to abolish the public school system. Let parents, who don't want their kids to act up like this, send there kids to schools where Catholic nuns slap some sense into them, and let parents, who want their kids to be able to poke fun at things, send their kids to less strict schools.

MadMan,How typical of you. It is a privilege for my children to attend these schools, what a hardship my children must feel that they can't act like careless adolescents. My son is certainly finding out how a good school reputation does wonders for college admissions.

Does it alter the view of anyone siding with the school if, instead of claiming that the sign violated anti-drug policy, the teacher and/or principal tore up the sign and suspended the kid because the sign is blatently blasphemous? If instead of thought-policing Stalinists, the school officials were Bible-thumpers objecting to Jesus as hippie, would your opinion change?

An Edjamikated Redneck said..."Simon; Supose this were an in school assembly. If Frederick were truant, and showed up at the assembly with the same sign, would you still have the same position?"

I think that'd change my mind, yes. In that hypothetical, the conduct would take place on school premises, which would make it much more clearly analagous to Fraser.

But here, the conduct at issue didn't take place on school premises and didn't take place while the school was exercising in loco parentis authority over Frederick. And with all due respect, Fritz, I don't see that as being a sematic difference, because it goes to the power of schools to punish students for conduct that takes place outside of school and at a time when the school didn't have authority over them. That begs the question of why schools would have that authority, particularly since it starts to intrude on the zone of authority one traditionally assumes to belong to the parents.

I'm conflicted on this, as anyone following this thread top to bottom should be able to tell, but it seems clear to me that there's a difference between the limits a school can demand of students in school and what it can do about conduct that occurs outside of school. If this conduct had happened unquestionably in school, of even outside of school at a time when this student was undoubtedly under the school's authority, this would be a much easier case for me, but I think we have to talk about this on the assumption that we lack the power to mold the facts of the case to a shape more to our liking.

[S]uppose we buy that his classmates were "at school" for present purposes, which would mean that if Frederick showed up that day, this would presumably be akin to Fraser. But he was playing truant. He didn't show up to school that morning, which means he wasn't registered as being in attendance, which means (inter alia) that the school didn't assume in loco parentis authority over him.... Emphasis added.

As a practical matter, what difference should his truancy make? Is a school principal supposed to have perfect recall of which students are "registered as being in attendance" at any particular moment? Are we granting greater speech rights to a truant than someone who's lawfully attending class? It wouldn't be the first time we've accorded greater rights to someone on the fringes of the law -- strip club's are able to discriminate based on sex while Hooters' cannot. I just don't think it wise to reward a student for missing class by allowing him to say something at a school event that someone attending class cannot.

avid, I thought it was interesting that the instigator is now leading a classroom, having to deal with people like his own young self. I like circular stories -- what goes around, comes aroundHuh - let's finish this thought shall we? He's teaching in China? I'm sure the little rascals are real cut-ups over there and love mixing their education day with truancy and free speech exercises. I suppose he goes to work in a "Bong Hits 4 Mao" t-shirt. Yeah, that's the ticket.

David - my answer (adequate or not) is in the sentence after the one you emphasized: it goes to why and when the school can exercise authority over a student's conduct. They can do so at all times when the student is on their premises, but what about field trips and the like (which, arguendo, I'll accept that this analogizes to)? Outside school premises, their authority has to rest on their having in loco parentis authority over the student. What other source of authority could they have? Well, if that's so, when does that authority begin, when does it end, and if the student wasn't at school that morning (hadn't even set foot on school property), how did the school get it?

Now, is it unpalatable that this distinction would "grant[] greater speech rights to a truant than someone who's lawfully attending class?" You bet. But if the law's going to turn on what we think of the litigant and their conduct, rather than what protections the Bill of Rights affords them, I have a long list of cases that I'dlike to revisit where unpleasent litigants who deserved what they got none-the-less carried the day. That's the whole point of the bill of rights: to protect minorities from the view of the majority.

Heh:JUSTICE BREYER: Yes, but you rephrased it that way, but what actually happened is the principal looks across the street, a 15-foot banner goes up at what's supposed to be a school event with everybody together in a single place, and it says a joke, it makes a joke out of drug use. The principal thinks of course adolescents and post-adolescents sometimes like to test limits, and if the kids go around having 15-foot banners making a joke out of drug use that really does make it a little tougher for me to convince the students at this school not to use drugs, and particularly putting up 15-foot banners. I don't know why everybody wants to get away from that because I think you would have had a very different case if in fact it had been a whisper or if it had been a serious effort to contest the drug laws. It wasn't either. It was a joke. It was a 15-foot banner. We have the message plus the means plus the school event. Now, what's your response?

Simon,Had his parents called the school to notify his absence, then it would be free speech. Tardiness is a school matter. The district truant officer would have the authority to incarcerate the lad off school grounds. Say Frederick was seen by school officials aware of his truancy but they did not act. Then later in the day he was found dead, you think the school district could avoid liability?

I thought of something else that might change my mind, were it present in this (or the next) case. A factual point that seems absent from the briefs or the oral argument: We all assume, reasonably enough, that this school does not require an identifiable school uniform, a peculiarity of the American education system, IMO, but a widespread one. If that assumption is flawed, and Frederick (or some future litigant) was wearing a uniform - and thus identifiably of the school - that might push me off the fence, in that it would establish a connection between him and the school that given all the other facts at play (the close proximity, his usual attendance), might suffice to establish that the school had authority to demand he take down the banner. I'd accept that as a distinguishing difference in an otherwise-identical subsequent case.

Fritz, to make that argument you unavoidably need to answer my question above: when does the school assume in loco parentis authority over a child? Suppose this kid normally rides the bus; arguably, when he sets foot on the school bus, at that moment, responsibility (and thus, authority) attatches to the school district. What about before he gets on the bus, when he's standing at the bus stop on the street?

As to your hypothetical, assuming you're invoking a scenario in which the student didn't show up to school (as opposed to coming to in the morning but subsequently leaving before the end of the day): I honestly don't know whether - as a matter of prevailing caselaw - they would avoid liability, but I will admit that under the theory of school authority that I'm advancing, I would probably be forced to hold that liability can't and didn't attach, because the school lacked authority over the student.

Simon,I think the Court can take the view that students of the district are under the authority of the school district at all times during the school day unless the parents relieve the district of such responsibility with an action. To cover the Scalia's zoo hypothetical, if the absent student without parents comes in contact with district activities, he vacates the parents action, returns to school authority.

The truly dumb part of all this is that anyone with two brain cells to rub together would think a school's anti-drug message had any efficacy at all.

In my direct observations of my teenagers, their friends, jerk principals and vice-principals, preaching obviously idiotic messages and generally acting like assholes does more to undermine schools than anything the kids are actually doing.

Sixty years ago the principle would have walked over, taken the banner, smacked the kid in the mouth, and nobody would bat an eye.

And the kid would have grown up to be at least a slightly more decent human being for it, hopefully not a whiny brat that sucks up taxpayer money because he has a sense of entitlement for being properly disciplined.

Fritz,"I think the Court can take the view that students of the district are under the authority of the school district at all times during the school day unless the parents relieve the district of such responsibility with an action."

Thinking about it from a parent's perspective, I might be able to be comfortable with that, because you're giving me a built-in safeguard against the school assuming authority over a kid who's home sick, for example, because my action in authorizing that absence voids their authority.

But on the other hand, thinking about it from the school's perspective, I'd have to come back to my school bus point above: is the school liable if little Timmy gets hit by a car while waiting at the bus stop? Why not, if Timmy is "under the authority of the school district at all times during the school day unless the parents relieve the district of such responsibility with an action"?

Can we go further - how about this hypothetical, reformulating what it means to be a "parent" within your rubric: Suppose Joanna's parents split up, and the dad's denied custody. It's all terribly acrimonious, but Joanna's mom is now the parent she's living with, with sole authority to "relieve the district of [its] responsibility[ies] with an action." One morning, Joanna leaves the house to walk the two blocks to the bus stop, and has barely made it off her front stoop when her dad snatches her off the street. Is the school board liable for neglect? Why not, if they have responsibility for her at all times of day other than when a valid legal guardian has taken some action to void that responsibility?

I would bet that this decision clarifies nothing at all. This hardly seems like a burning freedom of speech issue. It is interesting only if one finds intricate puzzles interesting, on the order of angels-on-heads-of-a-pin dimensions.

But its larger message is apparent to students. In matters of behavior, students merely need to expose their holstered lawsuit, not even pull the trigger, to frighten an already submissive school faculty.

It simply too much trouble to wonder whether this rule or that rule applies, and that one cannot simply use one's judgment in disciplining a student. No, one can only be sure that some parent will exploit the legal system for personal gain and remove further struts from the school disciplinary structure.

The mere fact this case was brought forward, regardless of the decision, leaves schools with two choices in avoiding future lawsuits and the related expense of injurious defense:1) Create a more robust student policy handbook that explicitly outlines permissible conduct, and punishments available for disobedience.2) Or, abandon any attempt at control, and permit students to do whatever they damn well please.

Such has been the state of many public schools, and their largely undisciplined barbarian behavior is evident at the mall, the roadways, and high school sporting events.

Because God forbid anyone stand in the way of some jackass wanting to tweak his school. That speech is far too important to limit. (Shame on these parent, too, BTW.)

Pogo -- This wasn't on school grounds. That's the whole point of the thing.

Joe -- I think kids seeing a bunch of crackheads, methheads, ruined coke fiends, strangely stupid potheads, and heroine addicts is the message that has led to a general decrease in problematic drug use.

Simon,Timmy waiting for the school bus is before school starts and the district has not taken possession of the student to warrant liability. When Timmy steps off the bus at school, liability begins, getting on the bus to go home ends it.

If a crime is committed the district has no liability. The time between the bus or walking to school does not fall on the district. I will say I was in such a case. As a juror in judge's chambers, I told the trial lawyer suing the district that he would have to give me a pretty big song & dance to convince me that the district hadn't taken sufficient action to protect students at the crossing point. That the injured student would be exploited to find the deep pockets of the district, when care for the boy is a social problem. The judge then said that the lawyer was a pretty good dancer and struck me from the jury pool. The Village of Arlington Heights settled for $2.3MM the next day.

If the SCOTUS determines that school authority dies at the property line, then I'm going to lobby our school to defund and cease all off-campus activities. They are, in effect, SCOTUS-approved free-for-alls anyway, with no one in charge. So why should I pay taxes to fund free time for Beavis and Butthead to rool?

I cannot believe our courts didn't throw this garbage out when first brought. What a colossal waste of time on a minutiae, whose consideration favors only school smartasses.

Our nation has gutted property rights mostly without a peep, now we fritter away court time wondering when a student is actually a student. Kee-rist on rollerskates. That young man needed 5 minutes with my b-ball coach and history teacher. "Every teenage boy needs a pat on the back," he'd say, "as long as it's low enough and hard enough."

Steven, the banner was raised across the street from the school. Students were released from class and were allowed to stand on either side of the street to view the event. I don't think the the fact the banner was off school property makes any difference in whether a school has the power to regulate this form of its students' speech under such circumstances.

Fritz, that's a total volte-face on your part. Either "students of the district are under the authority of the school district at all times during the school day unless the parents relieve the district of such responsibility with an action," or the district must at some point "take[] possession of the student to warrant liability." Those are totally contradictory standards you're advancing. Which brings us back to my question above, viz., when does the school/district take possession of and assume in loco parentis authority over the student?

You previously proposed to answer that question by saying that the school/district assumes authority and responsibility automatically at the commencement of and for the duration of the school day, absent some action by a parent which voids the school/district's authority and responsibility. But now you're denying that: now you're suggesting that there is a threshold of some description that must be passed before liability can attach (and thus, authority gained). You advance the school bus as the threshold, and I agree with that. And presumably, you'd accept the school gate as analogous to the schoolbus door as the threshold for children who don’t ride the bus.

Well, that being so -- what about Fredrick, who didn't step onto the school bus that morning, and didn't walk through the school gate that morning? If there's a threshold before the school/district assumes authority and responsibility, how, where, when and why did Fredrick cross it? What's the basis on which the school/district was liable for him - and had authority over him - that morning, if you now deny that "students of the district are under the authority of the school district at all times during the school day" and if he didn't pass your new threshold test?

not on school grounds...So students can make rude remarks during school sporting events not on school grounds? I guess we have to let our little mush minds display rude behavior for the good of the Republic. I mean, why shouldn't Frederick and his pals begin chanting and cheering, Bong Hits for Jesus! or that favorite of our youth, YOU SUCK!

Pogo,I'm not suggesting "that school authority dies at the property line," I'm suggesting that where jurisdiction isn't premised on property, it must be premised on authority. School control over student conduct doesn't have to end at the property line if it is still acting in loco parentis over a student or students outside of the property line - a field trip, for example. But again, the point is that in this case, Frederick was not on their premises, and they had not - to use Fritz' term - "taken possession" of him for the day.

That he wasn't on school property is unalterably true. That means (as I see it) that what you (and Fritz) need is a workable explanation for why the school did have authority over him - either a theory of why they did at the time have authority in loco parentis, or some other source of authority.

As I've indicated above, I'd love to be convinced that I'm wrong about this. ;)

I guess we have to let our little mush minds display rude behavior for the good of the Republic.

If the criterion for what protections the Bill of Rights offers is "what is best for the good of the Republic," there are an awful lot of cases that were wrongly-decided, starting with every crimpro case ever decided where a procedural rule was established the violation of which trumped actual guilt.

1. This is free speech we are talking about here. And it's political and religious speech. The kid's view seem to be that politics and religion are stupid, but that's a valid (apnd possibly superior) view.

I am all for community standards when it comes to non-political, non-religious speech. Nude dancing is not speech, any more than plumbing is speech. But the First Amendment must protect political and religious speech.

2. Let's consider some hypotheticals:

a. Students smoke cigarettes across the street from school. Can the school stop it?

b. Students get in a verbal, yelling fight across the street from school. Can the school stop it?

c. Students pray across the street from school. Can the school stop it?

I would answer no, no, and no.

I don't think what this kid did was at all bad. It was good. It was in the great spirit of harmless fun and the shenanigans of youth. Plus, the kid has constitutional right to do what he did. The dorky, no-fun principal should have simply let it go.

3. Fritz -- "School grounds" extend to school functions. If it was a cross-country meet at the golf course and this happened and the coach tore up the sign, this case would never have gone anywhere.

Re: "a workable explanation for why the school did have authority over him"

Fair enough. I suppose that could be spelled out both in instructions over the loudspeaker and in the student policy handbook.

Regardless, I see little advancement for the cause of free speech here, only advancement for wanton mischief deemed "speech" only to get out of trouble or for the school district's cash. It's some doofus yanking the Constitution's chain, and somehow I'm supposed to feel it's an Important Issue.

Instead this represents how we don't let school principals (or much of anyone) use much discretion anymore. Every little step gets questioned, and sent up to Higher Authority for the Federal O.K.

Ultimately, cases like this make much clearer to me why people hate teaching in public schools. "The great spirit of harmless fun and the shenanigans of youth" is a value only when it is not the norm for behavior, but opposed to it, and when it learns from its errors by consequences swift and true.

If the high school wins here then government entities are going to have vast power to control the political and religious speech of high school students. And, you know, high schools are a lot like colleges. And colleges are a lot like corporations. And corporations are a lot like small towns. This is no slippery slope, either. This is lower courts trying to get the law right in analogous situations.

People siding with the principal are seeing this too narrowly. Yeah. It's true. In this case, we have a frivolous kid trying to get attention (who has succeeded). But the larger point here is free speech, which must be protected. No-fun principals and all government agents must be made to allow free religious and political expression, and be made to pay with their jobs and their savings and their homes when they don't.

I think it's that important.

And I really do think we'll see 9-0 here, possibly with some sort of suggestion that damages are de minimums/

Seven,I'm not sure I can agree about your hypotheticals. I'm pissing off everyone WRT this case! LOL. Your hypotheticals don't raise free speech concerns (the third would presumably raise free exercise problems), but either way, I don't think school authority necessarily stops at the edge of school property, per my reply to Pogo above.

It's some doofus yanking the Constitution's chain, and somehow I'm supposed to feel it's an Important Issue.

The ability to say things that annoy powerful people without being punished for it is pretty much THE "Important Issue" in free speech.

Yeah, the student was deliberately trying to provoke a reaction, but then again so was Rosa Parks. The point is, had the school authorities known the proper way to behave in a free society a reaction would not have BEEN provoked.

Pogo:"It's some doofus yanking the Constitution's chain, and somehow I'm supposed to feel it's an Important Issue."

That's exactly how I feel about the guy with the jacket from Cohen v. California. Nevertheless, the first amendment doesn't only protect smart speech, it protects incredibly dumb speech as well, aand ultimately, I agree with Justice Scalia's view of "speech" as the First Amendment uses that term, as he explained at his confirmation hearings: "I define speech as any communicative activity. [Can it be nonverbal?] Yes. [Can it be nonverbal and also not written?] Yes. [Can it encompass physical actions?] Yes."

I don't disagree with you about any of your normative assertions. I just don't think normative assertions define the content of the Constitution of the United States, for better or worse.

Simon, thst was what my point was about- Frederick knew he was at a school function, and was probabaly truant for the purpose of bringing his banner (I doubt he would have been able to sneak it both into and then out of school again, based on it size.

Had our intrepid student raised this banner away from the students, and not entered teh student body, my response would be different; then he would have been exercising HIS free speech rights, and not piggybacking on the school's.

Simon,I don't understand what you mean. If school begins at 8:30 a.m., why should they be liable while the student is at the bus stop at 7:30 a.m.? The bus or walking to school has not begun during the school day. I can also see authority of behavior on the bus and walking to school being covered by the district.

Frederick was covered the moment the school bell rang. He did not have a parental action, he was truant. The school had the authority to apprehend him if they so chose. They also had authority to monitor his behavior when he came in contact with district personnel, which they did. Even if his parents had authorized his absence, if he wanted to maintain anonymity without his parent present, he should have been out of the purview of district officials which he wasn't.

Also for those that consider him off school property. If I'm at school X to watch my team play, I then get into a fight, my school can still take action against my behavior at school X. School X is just as public as the sidewalk I stood on to display my obnoxious banner.

Re: "the first amendment doesn't only protect smart speech, it protects incredibly dumb speech as well"

Simon, I agree with you; and well said it was.

My only disagreement is that this is about a high school kid. His rules, in my view, should (and do) differ from my rules. His world should be more constrained.

For example, I don't believe a 5 year old has free speech. A mighty swat compels him to refrain from the urge to scatalogize at granma's. Potty mouth is similarly punished when learning sums, even at Angela Davis Grammar school.

Just like with driving, teenagers are dangerous as hell, and don't know enough to be making the rules. Still, I have no doubt my view will not prevail. I just cannot imagine the 1879 SCOTUS deigning to consider such an imaginary sleight.

I highly doubt that our Founders would have tolerated obnoxious youthful behavior as a form of free speech.

You obviously need to read a biography of Ben Franklin. :)

I can't say that I understand your "I can punish my kids, they don't have free speech rights" attitude. Yes, YOU can punish your kids. The point is, officious government bureaucrats cannot. If this kid's parents wanted to ground him for a year for waving his "Bong Hits 4 Jesus" banner that would have been their right. The teacher and principal, on the other hand, had NO right to punish him because he had done nothing bad in an area in which they had authority.

I understand many see this as a protest of the establishment, but for better or worse, these are minors. There is a time and place for Mr. Frederick to protest authority. The school has a greater interest in civil discipline than Mr. Frederick getting his jollys at the expense of that authority. I want to know how not being able to display his banner harms his liberty?

The kid did nothing wrong, unless you think doing something government bureaucrats find annoying is automatically wrong. If he was my son I wouldn't have punished him either. My parents didn't believe in punishing kids for no reason.

So of course the father went after the school. The school slapped a *serious* punishment on his kid, one which had the potential to ruin his chances of getting into a good college, for absolutely no valid reason at all. Someone who does that to MY family had better hope they never encounter me in a dark alley. :)

If he was my son I wouldn't have punished him either. My parents didn't believe in punishing kids for no reason.

revenant-The kid was promoting drug use in front of a bunch of high schoolers. I don't care if you find some statistic where drug use in that school went down after the event. Kids are impressionable and doing something "funny" and "smart" and getting away with it is not constructive.

Any problems this child had getting into college resulting from him ditching school and displaying an asinine banner in front of his classmates fall directly on his stupidity and perhaps his father's own poor parenting.

Good parents can have bad kids, but good parents don't go after educators who make their best efforts at proper discipline of said bad kids (it was a school event and I don't believe reading that principle should somehow have known whether he was truant or not).

It depends. A 10 day suspension is harsh. However, after reading this about the kid in question, "All agree that Frederick was a rabble-rouser. The school had previously called police when he refused to leave a common area. The next day, he was disciplined after he remained seated during the Pledge of Allegiance.", I give him no slack at all.

He's a serial asshole, a repeat offender at chain-yanking.

He simply should have been expelled. And if my principal got beat up for it, that kid better hope they never encounter me in a dark alley.

Revenant,While you take great pleasure in civil disobedience, schools are there to educate and they have a greater interest to maintain discipline than to grant a single student an opportunity to undermine that necessary authority. There is no known harm to not allow Frederick to perform his prank, but his prank does harm the authority of the school administration.

Minors? Nope. That piehole has rules, man. Lose those rules, by not shovelling some Western Civ into their barbarian little souls, and you lose that very freedom for adults. Slowly, and over time.

Witness Canada and the UK. Drip by drip, they lose their freedom of speech, having jettisoned Western Civ years prior. Goodbye UK, goodbye Canada. Hello Eurabia and the Caliphate of N. America (i.e. that vacuum will be filled).

Freedom isn't free, as the saying goes. Part of the price is learning basic citizenship. It makes a mockery of freedom to suggest it is wholly encompassed by mere acts of juvenile liscentiousness, or endangered when such antics are delimited for a sophomoric refusenik.

Actually, Revenant, I do in fact think the principal was rather stupid here. Young men like this know how to push buttons. And the principal wound up playing the kid's game; and the kid is better at it.

A far better approach to dealing with idjits like this young George Carlin is to make him play the game you know you can beat him at.

Run him through the Admistration wringer. Since he was truant, and has prior offenses, go after that. Pile on detention, which will be skipped. Pile on more, plus meetings meetings meetings that require your parent to be present. Meetings with a teacher's panel, then security, then with the School board liaison. Repeat. Failure to abide? Expel, after due consideration.

While you take great pleasure in civil disobedience, schools are there to educate and they have a greater interest to maintain discipline than to grant a single student an opportunity to undermine that necessary authority.

That would be a valid point if the school had been educating the kids during the events in question. It wasn't, so it isn't.

I would further observe that the American tradition is that respect for authority must be EARNED by that authority. The notion that authorities deserve automatic deference profoundly un-American. The authorities in this case demonstrated themselves to be undeserving of the very respect you're accusing the student of not showing them.

It is certainly true that many people, yourself and Pogo among, think that a key lesson taught by schools is "sit down, shut up, and do as you're told". To people such as yourself I'll simply observe that there are many nice socialist European countries where that sort of mindset would fit right in. But personally, I like the fact that I live in a country that values freedom.

There is no known harm to not allow Frederick to perform his prank, but his prank does harm the authority of the school administration

First of all it is obviously untrue that suspending Frederick for ten days does "no known harm". If the school officials had simply (wrongly) confiscated his banner and then later apologized for having done it this case wouldn't even be in court. But they did the wrong thing, did significant harm to the kid in question, and have refused to admit wrongdoing or take action to correct the harm done.

Secondly, regarding Fred's insubordination making the school's job harder... I tell you what. You quote the part of the Constitution granting the government the right to educate children in the manner it deems most convenient, and then I'll quote the part of the Constitution that forbids the government from restricting freedom of speech. Hint: my job's going to be a lot easier than yours.

Was the kid making the school's job harder? Sure. But the school doesn't have a right to an easy job. The kid does have a right to free speech. The fourth and fifth amendments make law enforcement harder, too -- that doesn't mean police get to rifle through your possessions whenever they feel like it.

Lose those rules, by not shovelling some Western Civ into their barbarian little souls, and you lose that very freedom for adults. Slowly, and over time.

The irony is that you don't see that supporting the "right" of government schools to control what children can do off-campus has the effect of teaching children that it is right for the government to tell you what you can and can't say, and can and can't do, regardless of whether there's any valid cause for the government to do it.

You're indoctrinating these kids with the same sort of anti-freedom left-wing mindset that, when those kids grow up, brings us censorious "campaign reform" and laws against "hate speech". You're telling these kids "your speech is disruptive to the government, so you aren't allowed the right to it" is a perfectly valid attitude for the government to take.

So no, you don't support freedom for either adults or children. You just think you do. In reality you're helping undermine it by teaching children that "freedom" is something you need government approval for.

If this kind of behavior is known to yank a principal's chain, then yes, some 5th graders will discover how to do it, judging by some of my kids' classmates. The printing on the sign might be messier, however.

That's sort of the point, seven. The question of whether 11-year-olds should have free speech rights in public spaces begs the question of what the hell an 11-year-old is doing in a public space unsupervised in the first place.

Fritz writes: Give me a compelling argument that high school students are entitled to free speech?

Question not directed at me, but I'll give several answers.

1) Unconstitutional Conditions: The state cannot condition the reciept of government services, such as public education, on the surrender of constitutional rights unless that surrender is necessary for the dispensing of that service. Thus, students give up speech rights to the extent that it is needed in order for the school to serve its legitimate function. Hence, banning disruption is legit, but anything more is not. This also speaks to why your private school can regulate any and all student behavior. Your association with it is entirely voluntary, and it is not bound by constitutional conditions.

2) Students should be taught our country's civil values, which include respect for free speech, even obnoxious sophomoric speech. They should also be able to speak as they want in order to serve as a check on the power given to the state to indoctrinate our children.

Fritz also writes:The Republic is in no danger because some teenager is prevented from being obnoxious, I would argue that the Republic is better served by preventing him from enjoying his rude behavior.

Fortunate then that the first amendment does not serve at the pleasure of the Republic's supposed best interests. Contrary to Justice Breyer, for instance, I would argue that the Bill of Rights is not purposive: free speech does not serve to protect the Republic, the Republic exists to serve free speech. And if a government instituted to secure that right becomes destructive to that end, then what legitimacy does it have?

I completely reject the idea that speech has to be political or serve the Republic to be legitimate. "Legalize Bong Hits 4 Jesus" should not be more protected than just "Bong Hits 4 Jesus."

Simon writes:I'm sympathetic to Scalia's suggestion that at a minimum, "Why can't we decide this case on that narrow enough ground, that any school whether it has expressed the policy or not, can suppress speech that advocates violation of the law?" Tr. Oral Arg., 12. I just need a little persuasion. ;)

I don't really like this standard. You can't normally criminalize any type of speech about illegal activity. And I don't see the compelling reason for changing that for students.

I also disagree with Scalia's point in oral that there isn't a logical reason for a distinction between speech relating to violent vs. non-violent crime. The first amendment is pretty unqualified: all speech is protected, and you don't get any exceptions until eight amendments later it is explained that enumeration doesn't deny or disparage other rights.

Individuals do have a constitutional right not to be the victim of violence or defamation that could pre-empt Kennedy's "Rape is Fun" button. There is no corresponding unenumerated constitutional right that trumps speech about bong hits.

Unless he can prove monetary damages, this is merely a shakedown, not a principled pursuit.

What an interesting view of human rights.

Should the police enter my home without a warrant and search it top to bottom, going through all my private papers, snickering at my porn collection, and generally violating my privacy, the actual monetary damages suffered by me would be zero. Even if the authorities refused to admit to wrongdoing, apologize for their actions, discipline the people who violated my rights, or make amends in any way -- i.e., if they behaved the way the school did in this case -- I myself still wouldn't be able to show so much as one penny of actual monetary loss. Which means, according to you, that my inevitable lawsuit would be "merely a shakedown".

What you either don't comprehend or simply stubbornly refuse to acknowledge is that our rights have value in and of themselves, even if we aren't using them to make money. Let me put it to you this way -- how much money would it take for you to never again pray, worship, or admit to believing in God? I'm guessing the answer is either "a lot" or "no price would be high enough for my conscience". Well, there's your monetary value right there.

Ten days of suspension for a blatant violation of First Amendment rights? That's not damages? Okay, Pogo, let's go with the hypos again:

1. Your name is Brian. You got an 800 math/verbal on the SAT. You take a prep course and raise your score to a 1200. The SAT-makers say this is impossible and cancel your score, accusing you of fraud, despite no evidence at all. You end up losing a scholarship at Lehigh and go to a far lesser school instead. Money damages?

2. You are black. You aren't allowed to enter a country club. You sue. You have standing because the country club has a liquor license. You win. Money damages?

3. You are retired and you live on a pension. You rightnaded. are walking by a construction site and your left hand gets shredded off when a machine malfunctions. The construction company pays all your medical expenses. Money damages?

Re: Ten days of suspension for a blatant violation of First Amendment rights? That's not damages?"

To a high school kid?This high school kid?Give me a break.

Unless he was in fact refused admission at a school of his choice or lost a job or something other than being off of school (that he apparently can't stand), the damages are bogus.

Your other 3 cases appear unrelated to this. This case represents the grotesque way in which lawsuits can be used to cow everyone into submission, fearing being undone by the legal juggernaut.

In any event, if the student wins, and I expect he will, and gets money for his "troubles", the case will be suddenly followed by similar suits . Mainly from Islamists, who will use our legal system to raise cash to fund their efforts here. (See the flying imams suit, one I find very much like this one).

Not quite what I stated. He can sue whomever he wants. I made no coment on such cases in general; that's your conclusion, jumped to.

Rather, I said that this particular man shouldn't receive money for this particular lawsuit, because in this case the remedy is unwarranted as he lacked any injury. Suspension was no injury to him (it was more likely a bonus), and I cannot see where he has argued any other loss.

Moreover, Roberts made it apparent that the SCOTUS justices are just as unclear as the principal was on the operative rule here, so for pete's sake, just make the call for future reference and be done with it.

I made no coment on such cases in general; that's your conclusion, jumped to.

I did, indeed, assume that your statement "Unless he can prove monetary damages, this is merely a shakedown, not a principled pursuit" described a principled approach to government violations of rights.

This is because I was giving you too much credit, and assuming you weren't the sort of person who thinks the government should be free to violate the rights of American citizens without consequence, provided that you personally don't like the way those people are using those rights. It turns out you are just such a person.

Your claim that you "absolutely" support free speech rights for adults stands revealed as a complete lie. Fortunately, the country was founded by, and the courts are staffed by, better people than you.

Re: "Your claim that you "absolutely" support free speech rights for adults stands revealed as a complete lie. "

Revenant, you're a smart guy, and very often I agree with you. When we do not agree, I don't accuse you of stupidity, or bad faith, or lying, or other such juvenilia.

Are you just unable to discuss certain topics?Having a bad day?Need a beer?I mean, please.You consider me "the sort of person who thinks the government should be free to violate the rights of American citizens without consequence"?Really?Got all that out my non-lawyerly opinion that a high school pinhead, a serial offender, a rebel without a cause, should be compensated because the principal guessed wrong about the appropriate rule to apply here when it wasn't quite clear to the SCOTUS justices themselves, and that they have to sit and debate it to actually define the damn rule the principal should have used?

You really think that sort of Rube Goldberg judicial thought, a standard which demands remarkable prescience on the part of average IQ'd slugs like me, that that sort of clerical error requires stiff compensation rather than mere rule-setting for the future?Well, I disagree.

More importantly, I don't think that disagreement says anything about you personally.So why you think my position somehow discredits me as a person is a curiosity. I'd guess there are just some things you cannot discuss without frothing. I have the same problem, actually, just not this stuff. So, cheers.

Hi, i just surfed in searching for interesting blogs on Spirituality, you have a cool blog. Do keep up the good work. I'll be back even though i live far from where you live. its nice to be able to see what people from across the world thinks.

Warm Regards from the Other Side of the Moon.

On a related note perhaps you might find the following link interesting. Its propossing a theory and i'll like to hear your take on the subject via comments. See ya...